State News

12-Year Battle Revisited

Readers may recall our report in the March, 2022 installment of The Compendium that Dr. Clinton Battle of Arlington Occupational and Medical Clinic had been sentenced to 12 years in federal prison following his conviction for conspiracy to distribute controlled substances and distribution of controlled substances. Dr. Battle also pled guilty to conspiracy to commit mail fraud. 

The U.S. Department of Justice advised in September, however, that Dr. Battle’s scheduled release date has been changed to September 26, 2030. He is not eligible for parole and will be 77 years old when released from prison. 

Dr. Battle is also required to pay $376,368.00 in restitution and will be under supervised release for three years after his imprisonment.
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

Chiropractic for Babies?
Early Engagement in the Battle Against Subluxation 

Chiropractors play a vital role in the Texas workers’ compensation system. Therefore, we like to keep our readers apprised of the latest developments in the field of chiropractic. 

We don’t know much about TikTok; however, we understand this social media platform, which enables subscribers to create and share short videos, is “blowing-up” over a controversial new trend: chiropractic treatments for babies….babies as young as 6 days old. 

Proponents claim that the gentle “baby adjustments” are effective treatment for a variety of baby ailments including colic, constipation, reflux, musculoskeletal issues, and even the trauma experienced in childbirth. 

Although manual treatments to address spinal conditions in adults were reportedly used by Hippocrates around 400 B.C. and by Buddhist monks dating back over 2,000 years, chiropractic as a “modern” profession began in 1895 when Daniel David Palmer adjusted the spine of a deaf janitor which, Palmer claimed, restored the janitor’s hearing. The primary issue, we understand, is subluxation. Subluxations, or misalignments of the spinal vertebrae, are thought by chiropractors to compromise and influence the function and health of the nervous system in general and the various organ systems in the body. Proponents argue that adjustments by a trained, qualified, and knowledgeable practitioner to correct subluxation therefore promote proper nervous and organ system function and health in general. 

But for babies?

As you might expect, many physicians have expressed concern that spinal manipulation of babies places them at greater risk for injury to their soft developing bones and over-stretching of their looser joints. According to an article in the Washington Post, one orthopedic surgeon at Children’s National Hospital in Washington D.C., Dr. Sean Tabaie, commented that there is no way one would achieve improvement in a newborn from manipulation. “The only thing you might possibly cause is harm.”

On the other hand, a recent study of 58 colicky babies in Spain found that light touch therapy resulted in a significant reduction of crying in those babies receiving the treatment. The parents of the babies were aware of the treatment, however, which can cause biased reporting of results. 

And following a 2021 study in Denmark of 185 colicky babies, researchers indicated data suggested that babies receiving chiropractic treatment “seemed” to cry less; however, the findings were deemed not to be statistically significant. 

Call us old-fashioned, but we think we would opt for the extended 3:00 a.m. car ride to soothe a colicky baby.

Copyright 2022, Stone Loughlin & Swanson, LLP

These Are Two of Our Favorite Things!

As we remind readers on a regular basis, Stone, Loughlin & Swanson is a Founding Sponsor and long-time supporter of Kids’ Chance of Texas, an organization whose mission is to create and support scholarship programs to provide educational opportunities for children in Texas who have had a parent catastrophically or fatally injured while in the course and scope of his or her employment. As participants in the Texas Workers’ Compensation system, we are particularly aware of the devastating toll such an injury takes on a family and, especially, the children. 

Please help us continue to help the kids by becoming a participant or sponsor and joining us for fun and camaraderie at The Cowboys Golf Club on October 28 for the Third Annual Kids’ Chance Texas Golf Tournament. 

All proceeds will fund Kids’ Chance of Texas scholarships which has awarded over $75,000 for the fall semester alone. Come help us reach our goal of raising $150,000 while enjoying the delightfully maddening frustration that only golfers can appreciate. 

There is still time to help the kids this month! For more information and to register as a player and/or sponsor, click here:

https://www.kidschanceoftexas.org/events/golf2022/

Copyright 2022, Stone Loughlin & Swanson, LLP

Remembering Gary Kilgore

We are saddened to announce that Gary Lynn Kilgore, long time Administrative Law Judge and Appeals Panel Judge, with the Texas Workers’ Compensation Commission and the Texas Department of Insurance-Division of Workers’ Compensation, passed away on September 23, 2022 at the age of 69. 

Mr. Kilgore attended college at the University of Virginia and earned his Juris Doctor in 1978 at the University of Texas School of Law. He served as managing partner of Garcia & Kilgore, attorneys, for over 16 years before joining the Texas Workers’ Compensation Commission where he served as an Appeals Panel Judge for 12 years. 

Thereafter, Gary heard cases as a Hearing Officer with the Division of Workers’ Compensation for 4 years before serving as Associate Director of Legal Services with the Office of Injured Employee Counsel, in which capacity he served for over 13 years. 

Mr. Kilgore returned to the Appeals Panel in 2019 prior to his retirement this year.

Those of us that knew Gary found him to be a wealth of knowledge regarding the workers’ compensation law and institutional system in Texas. He was an outstandingly gifted writer, a delightful conversationalist, and a student of the law and American and world history. We will miss you, Gary….

Copyright 2022, Stone Loughlin & Swanson, LLP

Although not exactly a broad sweeping reform of the Alabama Workers’ Compensation Act, the Alabama legislature recently amended the statutory definitions of  “employer” and “employee”.  

Effective July 1, 2022, a marketplace platform is no longer considered an “employer”, and a contractor that works for a marketplace platform is no longer considered an “employee” for purposes of workers’ compensation.  Under Alabama law, a marketplace platform is an entity that offers a digital network or mobile application that connects potential customers to service providers, and accepts service requests exclusively through the digital network.  Examples of marketplace networks Uber, DoorDash, and Buzd.  In order to be excluded from coverage, the marketplace platform and contractor must agree in writing that the contractor is an independent contractor, the platform cannot unilaterally prescribe specific hours during which the contractor must be available to accept service requests, the platform cannot contractually prohibit the contractor from accepting service requests for other platforms or engaging in another occupation or business, the platform cannot mandate furnished equipment or tools essential for the performance of the work (except as required by law or for safety reasons), and the contractor must bear substantially all of the expenses they incur in performing services.  

About the Author

This blog submission was written by Charley Drummond, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation.  Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network.  If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Drummond by e-mailing him at cdrummond@fishnelson.com or by calling him directly at (205) 332-3414.

According to People magazine, Q'orianka Kilcher has been charged with two felony counts of workers' compensation fraud.

Ms. Kilcher allegedingly injured her neck and right shoulder while filming Dora the Explorer and the Lost City of Gold, which was released in 2019. She saw the doctor a few times and then did not respond to the insurance company.  In October 2019, she allegedly requested authorization to see a doctor and told that doctor that she had been unable to accept work due to the severe neck pain. Despite this statement, it was found that she had worked as an actress on Yellowstone from July 2019 to October 2019. She apparently started receiving disability benefits five days after last working. 

There have been other instances of celebrities being accused of workers' compensation fraud.  For example, Brad Culpepper, a former NFL player, was suspected of workers' compensation fraud when he appeared on Survivor after his workers' compensation claim for injuries sustained while playing football. He was sued by his insurance company.

This just goes to show that anyone can be suspected of workers' compensation fraud if the facts are there.

Read more here:  https://highlights.hannabrophy.com/post/102hsre/even-actors-can-be-subject-to-workers-compensation-fraud

Independent Medical Review (IMR) is the process by which an injured worker may seek to overturn an adverse utilization review determination. Many among the Applicants’ bar in California will argue that only an employee may appeal the IMR determination. However, that is a misconception, likely driven by the rule that only an Applicant may seek IMR following a UR decision. Once an IMR determination is served, it is binding unless appealed timely on very limited grounds. LC 4610.6(h) outlines how to appeal an IMR determination and does not specify which party may file and it clearly does place any restrictions against any particular party seeking to appeal an IMR determination.

For the general practitioner, LC 4610.6(h) provides five grounds for appealing an IMR Determination within 30 days of service of an IMR determination. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence of one or more of the following grounds for appeal:

(1) The administrative director acted without or in excess of the administrative director’s powers.

(2) The determination of the administrative director was procured by fraud.

(3) The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.

(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.

(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.

In the case of Jordan Stone v AchieveKids, Caps-Sig (2014 Cal. Wrk. Comp. P.D. LEXIS 663), the Board not only decided it was permissible for Defendant to appeal the IMR determination, the Board even granted Defendant’s appeal of an IMR determination.  Factually, the Stone case involved an initial IMR determination overturning utilization review’s denial a right knee cartilage transplant. Defendant appealed the IMR determination on the grounds that it was issued in excess of the Administrative Director’s powers described in LC 4610.6(h)(1) and that it contained plainly erroneous findings that were not subject to an expert’s opinion per LC 4610.6(h)(5).  

Defendant's IMR appeal was originally denied by the trial judge and reversed on appeal. The Board found that there was a "patent discrepancy" in stating that the requested surgery was not medically necessary in one section, but then stating that it was medically necessary in another section.  The issue was sent to an alternative/new IMR organization to conduct a neutral review. This is the appropriate remedy when an appeal of an IMR determination is granted (LC 4610.6(i)).

So, if you receive an IMR determination that overturns a UR decision look to the 5 grounds for appeal noted above.  If you have questions about how this can apply to your workers' compensation cases, email me or find your local Hanna Brophy attorney at www.hannabrophy.com.

Read more here:  https://highlights.hannabrophy.com/post/102hw9p/defendants-may-appeal-adverse-imr-determination

2

Two workers' compensation bills currently working their way through the California Legislature contain potentially conflicting language regarding the time period during which a claim administrator may investigate a claimed injury.

AB 1751, which is currently pending in the Senate Labor, Public Employment, and Retirement Committee, would postpone the expiration of the COVID presumptions originally created in 2020 to January 1, 2025. If this legislation is not passed, the COVID presumptions are scheduled to sunset at the end of 2022. The current version of the bill provides that "if liability for a claim of a COVID-19-related illness [brought by an active firefighter or other enumerated employee] is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable." (LC § 3212.87 (f))

The bill also addresses COVID claims brought by other employees who test positive during a COVID outbreak. LC § 3212.88 (f) provides that "if liability for a claim of a COVID-19-related illness is not rejected within 45 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable."

These two provisions potentially conflict with language contained in SB 1127 which is currently pending in the Insurance Committee. This bill would amend LC § 5402 (b)(2) to shorten the investigation period for firefighters and safety officers. The relevant language states "for injuries or illnesses defined in Sections 3212 to 3212.85, inclusive, and Sections 3212.87 to 3213.2, inclusive, if the liability is not rejected within 75 days after the date the claim form is filed pursuant to Section 5401, the injury shall be presumed compensable under this division."  

The two pieces of legislation create different timeframes within which a claim must be accepted. 

AB 1751 is scheduled for a hearing in the Senate Appropriations Committee on August 8. SB 1127 is scheduled for hearing in the Assembly Appropriations Committee on August 3. 

The legislature is scheduled to adjourn on August 31. 

Read more here:  https://highlights.hannabrophy.com/post/102hu6w/pending-covid-presumption-extension-bill-ab-1751-conflicts-with-sb-1127

ALASKA NEWS

This newsletter is to inform you of Senate Bill 131, and the changes that are coming to the Alaska Workers’ Compensation Act on January 1, 2023.

Permanent Partial Impairment

Most notably, for the first time in 22 years, the legislature is amending AS 23.30.190 to increase permanent partial impairment (PPI) benefits. Under the new law, you will need to multiply an injured worker’s impairment rating percentage by $273,000, rather than by $177,000 under the current law. This increase is effective on January 1, 2023, meaning that it will apply to injuries sustained on or after January 1, 2023. For dates of injury before January 1, 2023, you will continue to calculate PPI awards by multiplying the percentage of impairment by $177,000. For injuries on or after January 1, 2023, the PPI award will be the percentage of impairment multiplied by $273,000. The dollar amount is the only aspect of AS 23.30.190 that is changing, the rest of the law will remain intact.

Death Benefits

Changes to death benefits under AS 23.30.215 will also go into effect on January 1, 2023. Under the new law, benefits for reasonable and necessary funeral costs increase to $12,000. The amount payable to surviving widows/widowers, or surviving children increases from $5,000 to $8,000. SB 131 substantially increases the maximum payable allowable to a deceased worker’s dependent father, mother, grandchildren, brothers, and sisters. After January 1, 2023, beneficiaries under AS 23.30.215(a)(4) may receive up to $150,000.00 in death benefits. This represents a $130,000 increase from the current maximum of $20,000, which was set in 1968. SB 131 will create a new subsection to AS 23.30.215, which will permit death benefits to a child beneficiary until they are 23. This is a four-year increase in benefits under the current law, and it does not preclude children of deceased workers from receiving an additional four years of benefits during post-high school education under AS 23.30.395(8) The various changes to death benefits under AS 23.30.215 only apply to deaths that occur on or after January 1, 2023.

Written by: Kyla Block

A trip and fall. Injury by machinery. Exposure to asbestos leading to a diagnosis of mesothelioma. These are life-changing events for employees (and employers) that may lead to a slurry of workers’ compensation claims. When the worst happens to an injured employee and his or her family is left behind, the Workers’ Compensation Act details the steps employers, insurance carriers, and administrators must take, as well as what family can anticipate in the aftermath of loss. The Act explains the scope of death benefits, including the different kinds of beneficiaries that may exist and how they will be allocated compensation. Considering key litigation helps to demonstrate how the statutes are applied in practice.

Who Can Be a Beneficiary?

According to the Act, a beneficiary may be someone wholly dependent on the employee, or they may be only partially dependent. If only one person is deemed to be wholly dependent, then he or she will receive the entire share of benefits. The Act considers widows, widowers, and children to be whole dependents. If there are multiple individuals who are deemed to be wholly dependent, then the compensation they receive will be divided among them “according to the relative extent of their dependency (Section 97-39).”

Partial dependents, unlike whole dependents, receive benefits in proportion to the amount of support they received from the deceased employee at the time of his injury. If there are neither whole nor partial dependents, compensation is assigned to whoever may be “next of kin.” These may include adult children, brothers and sisters, or parents. Next of kin, in the absence of whole or partial dependents, will receive the full compensation owed in a lump sum. In the absence of next of kin or dependents of any kind, no compensation death benefits will be paid. However, the employer must still pay for funeral expenses.

What Compensation Do Beneficiaries Receive?

Typically, beneficiaries to the compensation of a deceased employee will be due 66 and 2/3 percent of the employee’s average weekly wages calculated at the time of his or her injury. Benefits will be paid at this rate for 500 weeks from the date the employee dies. However, dependent children will continue to receive benefits beyond 500 weeks until they reach 18 years. Finally, if the deceased’s widow or widower is physically or mentally unable to care for themselves as of the time the employee’s death, then the widow or widower will continue to receive benefits throughout life until or if they should remarry.

Examples from NC Case Law

Prior litigation highlights the nuances in how our courts consider and apply death benefits owed under the Act. For example, Deese v. Southern Law and Tree Expert Company (1982) provides guidance on what happens if the pool of eligible beneficiaries pass away. The North Carolina Supreme Court considered the case of Charles W. Deese, who died following his compensable injury. At the time of his death, Deese was married with three dependent children under the age of 18. As his children reached 18 years, they would become ineligible to receive further compensation. Deese’s family argued that the amount of compensation no longer paid to children who reached 18 years should be reassessed and lumped into the amount remaining for any children who had not yet reached adulthood. To reassess the amount owed to remaining dependents would essentially increase the amount remaining beneficiaries could claim. However, the Court found that the only timeline during which apportioned benefits could be changed would be within the first 400 weeks. The Court further noted that the Act is not intended to “provide…the equivalent of general accident, health, or life insurance.” Thus, the amount of death benefits owed to dependents cannot be reapportioned when the 400 weeks have elapsed, even if dependents age out and are no longer eligible to receive benefits.

Not just anyone can claim death benefits. The NC Supreme Court has made key decisions regarding who may–and may not–be considered a beneficiary. In Fields v. Hollowell & Hollowell (1953), the Court considered the possibility of awarding death benefits to a long-time unmarried partner. Following the death of the employee, William Edward McMillan, the Industrial Commission awarded death benefits to the deceased’s mother. Of note, McMillan’s mother was not reliant upon him financially–she was awarded benefits as “next of kin,” and not as a dependent. McMillan’s cohabitating partner, Julia Mae Fields, appealed on the grounds that she was dependent on the deceased and should receive death benefits. The Court found that not only was it “alien to the customs and ideas of our people” to allow the same benefits to a cohabitating couple as it would to a married one, but it would also pave the path to denigrate the rights of the “legitimate claims of helpless defendants.” The Court denied Fields’ claim for benefits, reversed the decision of the Court of Appeals, and remanded the case to the Industrial Commission to award its initial denial of her claims.

If death occurs following occupational illness instead of one-time accidental injury, prior litigation explains what beneficiaries and employers can anticipate. In the seminal case of Booker v. Duke Medical Center (1979), the NC Supreme Court considered the claims of the family of Michael Booker. Booker worked as a laboratory technician at Duke Medical Center. As a part of his job duties, Booker regularly handled unmarked blood samples contaminated with serum hepatitis. Several years into his employment, he contracted serum hepatitis. After filing a claim for workers’ compensation benefits, Booker subsequently died from his illness. The Industrial Commission granted death benefits to his surviving wife and four children. When Duke and the insurance carriers appealed, the Court of Appeals reversed the award. The case then went before the NC Supreme Court.

The Supreme Court considered whether serum hepatitis could be considered an occupational disease and under what statute Booker’s dependents could claim death benefits: the statute in effect at the time of Booker’s initial worker’s compensation claim, or the amended statute in effect at the time of his death. While the Court of Appeals argued that the statue governing death benefits should be the one in effect when Booker became sick, the Supreme Court stated that the determining statute should be the one in effect at the time of Booker’s death, since “these amendments were made applicable to cases originating on and after their effective date.” Additionally, the Supreme Court held that Booker’s disease was occupational, even though it was admittedly a disease that any person could contract. Key for the Supreme Court was expert testimony noting that, though serum hepatitis is not a disease specific to laboratory technicians, Booker’s occupational exposure to the disease vastly exceeded that of the general population, putting him at significant occupational risk. The Supreme Court reversed the decision of the Court of Appeals and returned the matter to the Industrial Commission to award benefits to Booker’s family.

In Conclusion

In Deese, the Court explained, “in all cases of doubt, the intent of the legislature regarding the operation or application of a…provision is to be discerned from a consideration of the Act as a whole–its language, purposes and spirit.” The Act details the circumstances under which someone can be considered a beneficiary and claim death benefits. When seeking clarity on how to file for and pay out death benefits claims due to compensable workplace injury or occupational disease, employers and beneficiaries should look to the statutes and existing prior case law to understand how courts will interpret and apply these regulations, as well as under what circumstances exceptions do and do not exist.